Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism
The Ninth Amendment—our resident anarchic and sarcastic “constitutional jester”—mocks the effort of scholars and judges alike to tame and normalize constitutional law. The Amendment stubbornly resists control. It stands as a paradoxical, textual monument to the impossibility of textualism, an entrenched, settled instantiation of the inevitability of unsettlement. If it did not exist, constitutional skeptics would have had to invent it.